After School Programs

1. After School Programs Accommodating Students With Disabilities Julie C. Fay, Esq. Shipman & Goodwin LLP May 18, 2009

2. Hypothetical Johnny is autistic and has an IEP. His IEP requires a 1:1 aide during the school day, a behavior plan, and extensive services. His parents want to enroll him in an after school day care program. • Does the program have to admit him? • Must the program provide the same services he gets in school? 1:1 aide? • Can the program charge extra for such services?

3. Must Consider. . . • What law(s) apply? • Relationship, if any, with the board of education. • Is the service a “reasonable accommodation?” • OR, does it pose “an undue burden” or otherwise “fundamentally alter” the nature of the program?

4. Relevant laws • Individuals with Disabilities Education Act • Section 504 of the Rehabilitation Act of 1973 • Americans with Disabilities Act (*as amended in 2009)

5. IDEA Overview • Federal law • Public elementary and secondary schools • Requirement to provide specialized instruction and related services to students who meet specific eligibility criteria • FAPE – free appropriate public education

6. IDEA (con’t) • Individualized Education Program (IEP) defines appropriate program for that student • *Participation in extracurriculars, nonacademic programs and after school programs NOT typically part of IEP and NOT typically part of FAPE • Thus, fact student has IEP matters – BUT nonacademic programs typically not bound by IDEA requirements

7. Both ADA/Section 504: • Are federal laws which prohibit discrimination on the basis of disability • May not discriminate against an otherwise qualified individual (i.e. student must meet all essential qualifications with/without reasonable accommodations) • Require “reasonable accommodations”

8. Limits to ADA/Section 504 • Program not required to make accommodations that “fundamentally alters” the nature of program OR • Which pose an “undue burden”

9. What is the Difference? • Americans with Disabilities Act of 1990 (“ADA”)(as amended in January 2009) • Prohibits discrimination by public schools and other places of public accommodations • Applies to entities providing services to the public, such as: private schools, providers of educational services, day care centers, and places of recreation, social services, public gatherings

10. ADA Obligations • Must make individual inquiries • Must make “reasonable accommodations” • To policies • To procedures • To programs and practices • To allow for equal access and equal opportunity to benefit

11. ADA Obligations • Must avoid imposing nonessential eligibility criteria that screen out disabled individuals • Must not retaliate for exercising ADA rights • Must meet architectural standards for physical accessibility

12. Who Qualifies Under the ADA? Individual who has: • A physical or mental impairment that substantially limits one or more major life activities (ex. Learning, breathing, walking etc.) OR • A record of such an impairment OR • Being regarded as having such an impairment, whether or not they have the impairment or not

13. Examples of ADA disabilities: Orthopedic Impairments Mental illness Specific Learning Disabilities Visual, speech and hearing impairments Diabetes HIV, AIDS, hepatitis Multiple sclerosis Cancer Heart disease Drug addiction and alcoholism (*the law does NOT protect current users)

14. ADA AmendmentsEffective Jan. 1, 2009 • Definition of disability construed in favor of broad coverage • “Substantially Limits” • New regulations reject prior EEOC regulations; new standard is less stringent • Must consider nature and severity of disability • Eligibility determination to be made without consideration of “ameliorative effects of mitigating measures” (i.e. medication, medical supplies, equipment, prosthetics, AT, etc. ). Mitigating measures do NOT include ordinary eyeglasses or contacts.

15. ADA Amendments (con’t) • Major Life Activity expanded: • includes, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating )

16. What is a Reasonable Accommodation? Accommodation must be reasonable and necessary to allow student to participate (not necessarily to maximize achievement) Must not “fundamentally alter the nature of the program” Doesn’t alter an essential aspect Does not give advantage over other students AND . . . .

17. Reasonable Accommodation? • Must not cause “undue burden” • Significant difficulty or expense • Consider financial resources; # persons involved; # of employees of program; health/safety issues; nature of school/program; geographic location etc. • Determinations are made on case-by-case basis • Does not require provision of personal services (wheelchairs, eyeglasses, hearing aids, etc.)

18. Case #1 Parents wanted to enroll 4 year old with multiple disabilities in a private day care. Child had an IEP, which called for full time PCA (1:1 aide). Although Medicaid paid for 30 hours/wk for PCA, parents had difficulty securing consistent PCA services. Day care was a private, for profit, national provider. Parent sought full time enrollment (40-50 hrs/wk). Center agreed to enroll on condition that he attend only when PCA was accompanying child. Parent requested center provide the 1:1 aide. Q: Was requested accommodation reasonable?

19. Case #1 A: No Court found that accommodation requested (1:1 aide) posed undue burden on private day care. Considered fact that cost of hiring 1:1 would exceed tuition cost, thus resulting in net loss to provider. Important to note that center was required to be financially viable. Roberts v. Kindercare Learning Centers, Inc., 86 F.3d 844 (8th Cir. 1996)

20. Case #2 In this case, a private day care center sought to terminate enrollment of severely disabled 9 year old from its after school program because it could not meet his needs. Child had developmental disability, low vision, and mild seizure disorder and required assistance with walking, eating, communicating and toileting. Q: How did court rule?

21. Case #2 Court granted parents’ injunction preventing disenrollment. It determined that his attendance did not fundamentally alter type of service typically provided, noting that “in a daycare setting . . . Providing assistance with eating, toileting and dressing is a normal part of services provided.” Orr v. Kindercare Learning Centers, Inc., 23 IDELR 181 (ED Cal 1995)

22. More on the Orr case: • Notable that, during his 8 months he had been enrolled, student had never been a behavior problem or disrupted program • While parties disputed actual benefit of program for him (he was placed in 2 year old room); court found that his attendance was NOT fundamental alteration of program • Court rejected request for full time aide (paid for by other sources) and that he placed in room with school aged children, pending hearing on the merits as to reasonableness of accommodation.

23. Section 504 of Rehabilitation Act of 1973 • Federal law/civil rights law • Prohibits recipients of federal funds from discriminating on basis of disability • Applies to public schools; AND district sponsored non-educational programs • NO religious exemption • Protects students, employees, public • No specific eligibility categories

24. Section 504 • As with the IDEA, Section 504 requires public schools to provide FAPE, which does not typically include nonacademic or extracurricular programs BUT. . . • ALL recipients subject to Section 504 must provide equal opportunity for disabled individuals to participate in programs

25. As with the ADA: After school programs subject to Section 504: Do NOT need to accept if: Health or safety threat After individual consideration, reasonable accommodations CANNOT be made; or It is determined that acceptance would result in undue burden/hardship

26. Case #3 District operated an after-school daycare program. Preschooler with cerebral palsy was seeking enrollment. Child had difficulty walking, eating and toileting. Without consulting grandmother or child’s preschool teacher, district determined that student could not participate in program unless she had a 1:1 aide. Due to the added expense, district informed grandmother that she would have to pay for the aide in order for child to be enrolled. Q: Was this discriminatory? Did this action by the district run afoul of Section 504?

27. Case #3 A: Yes. District could not require grandmother to pay additional cost. • No evidence that 1:1 would “fundamentally alter” nature of program • No undue hardship since cost of $40-$48/day would not amount to financial burden. Chattahoochee County (GA) School District, 6 ECLPR 26 (OCR 2008).

28. Case #3 • In this case, program provided regular services to children 6 wks to 12 yrs who lived in district. Center was only daycare in county. After threat to close, board assumed control and it was now housed in district school building. Center also housed Head Start, pre-K and elementary school. There were two principals – one for elementary, and one for other programs, including Center. • Center paid rent to district; school board approved hiring of staff and setting fees • Center financially self-supporting • OCR noted that district did not consult with grandparent or school before making a determination about needed accommodations.

29. Case #4 District operated on site childcare program. Kindergarten student, with IEP, was dismissed from program after 1 wk for behavioral issues. Student demonstrating aggression towards peers, non responsive behavior and was wandering off and ignoring instruction. Program policy was that it did not provide 1:1 aides unless required by an IEP; otherwise parents had to pay for/provide the aide. In this case, student was dismissed from program until parent could secure 1:1 aide. Q: Was this a health and safety risk and therefore ok to exclude the student from the program?

30. Case #4 A: No. District could not have blanket policy of not providing specific accommodation. OCR noted that district could “not categorically exclude a student because the parent does not or cannot secure an aide that otherwise may be the obligation of the district to provide as a reasonable modification. **Key – no individual determination as to fundamental alteration or undue burden Hayward (CA) Unified Sch. Dist., 50 IDELR 289 (OCR 2008)

31. But consider this case . . District could lawfully exclude 3rd grade autistic child from its tuition based summer day care program because admitting him would fundamentally alter program. Even with 1:1 aide, he could not participate in field trips, which amounted to 60% of activities. Sudden and unpredictable disruptive outbursts could seriously disrupt field trips for peers. Mentor Exempted Village Schs., 32 IDELR 243 (2000).

32. What was different in that case? District tried to claim that 1:1 would pose undue hardship in terms of expense and inability to obtain and aide for short, 10 wk period. OCR determined that providing aide in itself was not the hardship, despite change in staff/student ratio and nominal increase in cost. BUT . . . there was sufficient evidence of undue administrative burden AND admitting the child would fundamentally alter the program since district would be required to hire aide; disallow child’s attendance on field trips; develop alternative programs, and it would significantly alter benefits of program to other children.

33. Remember the Hypothetical? • Do you have to admit Johnny? • Do you need to provide same services he gets in school? 1:1 aide? • Can you charge extra?

34. Suggestions for Accommodating Students with Disabilities • Know what laws apply to your program. • Understand your program’s relationship, if any, with the local public school district. • Use IEP and 504 Plans as evidence of disability and guidance as to what reasonable accommodations may be needed. However, these documents do NOT dictate what may be reasonable or needed in a different, non-educational setting.

35. Suggestions (con’t) • Avoid blanket policies excluding students with disabilities • Develop consistent process for responding to requests for accommodations or program modifications • Any decisions must be individualized, and supported by underlying data/information • Before “negotiating” with parents, ensure program has clarified the “essential” or “fundamental” components of its programs

36. Suggestions (con’t) • Have clear criteria/expectations for student behavior, performance and participation which define the “fundamental nature” of your program • Consider accommodations on a case-by-case basis, HOWEVER, be consistent to avoid claims of preferential treatment • Remind parents your obligation is to ensure equal opportunity to participate, with or without reasonable accommodations. School/program does not need to waive requirements for student to achieve maximum potential.

37. Questions?????